Filed 6/16/21 Marriage of Pruitt and Burwell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re Marriage of BECKY BURWELL PRUITT 

and GARY J. BURWELL.

BECKY BURWELL PRUITT,

Appellant,

v.

CYNTHIA BURWELL CLARK,

Appellant.

F076661

(Kern Super. Ct. 

No. S1501FL591767)

OPINION

APPEAL from orders of the Superior Court of Kern County. Susan M. Gill and 

Cynthia L. Loo, Judges.

Law Office of Edward J. Thomas, Edward J. Thomas, and Jeffrey A. Davis, for 

Appellant Becky Burwell Pruitt.

Baghdaserians Law Group, Patrick Baghdaserians and Garrett C. Dailey for 

Appellant Cynthia Burwell Clark.

-ooOoo-
2.

This appeal arises from a dispute between Gary Burwell’s first and second wives 

(respectively, respondent/cross-appellant Becky (Burwell) Pruitt and appellant/crossrespondent Cynthia (Burwell) Clark). Both parties claim they are entitled to the proceeds 

of a $1 million term life policy insuring Gary’s life. Becky was the original beneficiary 

of the policy proceeds. A subsequent attempt by Gary to change the beneficiary from 

Becky to Cynthia was later invalidated by the trial court.

After an original appeal and remand, the trial court determined the final premium 

on the policy was paid with funds from Gary and Cynthia’s community estate. 

Consequently, the court treated the distribution of the proceeds as being “akin to where a 

spouse chooses to name a beneficiary other than his/her spouse as the beneficiary” to a 

community-funded insurance policy. Accordingly, the court awarded half the proceeds 

to Becky as beneficiary of the policy and half to Cynthia as her community share. Both 

parties appeal the court’s rulings. We affirm.

FACTS

Gary and Becky married on December 9, 1978, and separated on September 21, 

2004. In 1996, a term life insurance policy was purchased (hereafter the “term life 

policy” or “the policy”). Gary was the named insured and Becky was the named 

beneficiary until October 7, 2008.

In September 2004, Becky petitioned for dissolution of her marriage with Gary.

Automatic Temporary Restraining Orders

Gary was served with a summons along with Becky’s petition. The summons 

contained a number of automatic temporary restraining orders (ATROs). (See Fam.Code, 

§ 2040; Cal. Rules of Court, rule 5.50(b).) The ATROs included the following text:

“Starting immediately, you and your spouse are restrained from: [¶] ... [¶]

“2. cashing, borrowing against, cancelling, transferring, disposing of, or 

changing the beneficiaries of any insurance or other coverage including life, 
3.

health, automobile, and disability held for the benefit of the parties and

their minor child or children;

“3. transferring, encumbering, hypothecating, concealing, or in any way 

disposing of any property, real or personal, whether community, quasicommunity, or separate, without the written consent of the other party or an 

order of the court, except in the usual course of business or for the 

necessities of life; and

“4. creating a nonprobate transfer or modifying a nonprobate transfer in a 

manner that affects the disposition of property subject to the transfer, 

without the written consent of the other party or order of the court. Before 

revocation of a nonprobate transfer can take effect, or a right of 

survivorship to property can be eliminated, notice of the change must be 

filed and served on the other party.”

Further Court Proceedings

A status-only judgment of dissolution was entered in August 2005, and the court 

retained jurisdiction over all other issues.

Gary and Becky reached an agreement with regard to the division of their marital 

property. Their agreement formed the basis of an August 22, 2006, “Stipulated Further 

Judgment on Reserved Issues.”

The parties agreed that a corporation in Gary’s name – Burwell Properties, Inc. –

would not be subject to disposition in any court proceedings because it was being held for 

the exclusive benefit of the parties’ adult daughters.

Under the parties’ stipulated division of assets, Gary was also awarded another 

corporation: Burwell Concrete, Inc. (BCI).

Gary Remarries

In November 2006, Gary married appellant and cross-respondent, Cynthia 

(Burwell) Clark.

August 2008 Stipulated Judgment

In August 2008, Gary and Becky stipulated to a “further” judgment resolving 

some property issues. Though the stipulated judgment indicates that “the parties have 
4.

reached an agreement with regard to the division of their marital property,” five issues 

were explicitly reserved for a trial. One of the issues reserved for trial was “claims for 

breach of spousal fiduciary duty.”

The stipulated judgment, signed by both parties, also states:

“16. Full Disclosure of Assets and Gifts. Each party has warranted to the 

other that he or she has no ownership interest in or claim to any property of 

any kind, other than the property described in this Further Judgment, and 

that he or she has not made, without the knowledge of the other, any gift or 

transfer of community property within the past five years for less than full 

and adequate consideration.

“17. After-Discovered And Concealed Assets. If additional assets of a 

community property nature are subsequently discovered, the existence of 

which were in good faith unknown or forgotten by both parties, such assets 

shall be divided equally between the parties. All other after-discovered 

assets shall be divided as determined by a court of competent jurisdiction. 

This court specifically retains jurisdiction over all concealed or afterdiscovered assets.”

The judgment also fixed the separation date at September 21, 2004.

Change of Beneficiary

On October 7, 2008, Gary changed the beneficiary on the term life policy from 

Becky to Cynthia. Gary had not listed the policy in his preliminary or final disclosure 

declarations in the dissolution action. (See Fam. Code, §§ 2104, 2105.)

Trial on Reserved Issues

The trial on reserved issues contemplated by the prior stipulated judgment 

commenced in June 2009 before Judge John Somers and continued over several months. 

Several issues were adjudicated at the trial. The most contentious issue involved a 

community-asset business called Burwell Concrete, Inc. (BCI). The court was tasked 

with deciding whether approximately $2.5 million in postseparation income from BCI 

was community income or Gary’s separate income. The trial also dealt with claims of 

breach of fiduciary duty.
5.

The court eventually issued its ruling on May 16, 2011. First, the court ruled that 

(1) BCI had been awarded to Gary on August 21, 2008, and (2) postseparation income 

from BCI prior to August 21, 2008, was community income.

The court then ruled on the breach of fiduciary duty claims as follows:

“[T]he court does not find a breach of fiduciary obligation in this case. 

There is no evidence that petitioner failed to meet her obligations of 

disclosure, or of good faith and fair dealing, in any way. Respondent’s 

[(i.e., Gary’s) ] conduct is more problematic. Despite counsel’s best 

efforts, there were often significant delays or problems in the disclosure of 

relevant financial information.... The disclosure issues, while problematic, 

are not sufficient in the court’s view to establish breach of a fiduciary 

obligation in this case.”

The court also ruled that Gary owed Becky (1) $105,195.49 in “back [spousal] 

support payments and interest”; (2) $125,000 in attorney fees; (3) $1,524,531 in 

reimbursements and credits for Becky’s portion of community property less $44,283.14 

in Gary’s reimbursements; and (4) $95,102 in previously ordered equalization payments. 

As a result, the court ordered that “Respondent and his estate” owed Becky 

$1,805,545.35” by November 12, 2011. The parties refer to this as “Becky’s $1.8 million 

judgment,” and we will do the same.

Gary’s Suicide and Becky’s Civil and Probate Actions

On April 17, 2010, after trial had commenced, but before the court had issued its 

aforementioned ruling, Gary committed suicide. Shortly after Gary’s death, Becky filed 

a civil action to prevent the term life policy’s proceeds from going to Cynthia. Becky 

also filed a probate action seeking letters of administration for Gary’s estate.

Becky moved to consolidate the civil action with the dissolution proceeding. 

Cynthia opposed consolidation. In her opposition papers, Cynthia argued that there were 

“no remaining issues left to be determined in the family law matter.” Her opposition 

papers further stated that she “is not a party to the action nor does she have any real 
6.

interest in the outcome.” The court denied the motion to consolidate, but ordered the 

civil action stayed.

Becky’s Motion Regarding the Insurance Policy

Concurrent with her motion to consolidate, Becky filed a motion seeking 

adjudication of the insurance policy as an omitted asset. (See Fam. Code, § 2556.) 

Becky contended that she was entitled to 100 percent of the proceeds. She acknowledged 

that she was aware of the policy when it was purchased but assumed Gary had let it lapse.

Becky argued she was entitled to the proceeds under three legal theories. First, 

Gary’s purported change of beneficiary from Becky to Cynthia was void because it was 

made in violation of the ATROs. As a result, Becky was still the operative beneficiary 

under the policy. Second, Gary’s failure to disclose the insurance policy in his 

disclosures violated Family Code section 1101, and therefore the proceeds should be 

awarded entirely to Becky under subdivision (h) of that section. Third, the court retained 

jurisdiction over omitted community property assets under the August 2008 stipulated 

judgment. She argued she was entitled to half the proceeds as her share of the 

community asset. She also claimed the other half of the proceeds because they exceeded 

the amount of debt Gary owed her. These included amounts Gary allegedly owed her 

under the August 2008 stipulated judgment and “anticipated amounts [Gary] will owe 

[Becky] once Judge Somers makes his ruling [after the trial on reserved issues].” Becky 

subsequently filed a “Supplemental Memorandum of Points and Authorities” raising a 

fourth theory of recovery. In that filing, Becky argued that Gary’s purported change of 

beneficiary must be set aside as a fraudulent transfer under section 3439.04 of the Civil 

Code.

Cynthia filed briefing in opposition to the motion, and her counsel appeared at oral 

argument. She contended that the policy was Gary’s separate property. She also argued 

that, to the extent the ATROs apply to separate property, they conflict with Family Code 
7.

section 2010. Cynthia contended that section 2010 provides that “the court has no 

jurisdiction over a spouse[’s] separate property.”

Court’s November 9, 2011, Order

Judge Susan M. Gill ruled on the motion in an order dated November 9, 2011. 

The court found that Gary failed to disclose the policy and thereby violated his fiduciary 

duty to Becky. As a result, the policy was deemed an omitted asset and was “neither 

distributed in the Judgment on Reserved Issues, nor included in Judge Somers’ ruling of 

April 1, 2010.” Therefore, the ATROs continued to apply to the asset, and Gary’s change 

of beneficiary to Cynthia “is void.”

The court ruled that the policy was a community asset. The ruling contained no 

analysis of the characterization issue but did cite to Estate of Logan (1987) 191 

Cal.App.3d 319, 326 (Logan) and In re Marriage of Gonzalez (1985) 168 Cal.App.3d 

1021, 1024–1026.

The court ordered one-half of the $1 million proceeds distributed to Becky “as her 

share of this community property asset.” The court ordered that the remaining half of the 

proceeds “shall become part of [Gary’s] estate.” The order notes that Becky is a creditor 

of the estate, “and the Probate Court must resolve the issue of what priority to give 

[Becky’s] creditor claims against [Gary’s] estate.”

Burwell I

Both Cynthia and Becky cross-appealed the trial court’s November 9, 2011, order. 

In a partially published decision filed October 31, 2013, this court vacated the trial 

court’s ruling that the term life insurance policy was a community asset. (In re Marriage 

of Burwell (2013) 221 Cal.App.4th 1 (Burwell I).)

We held that “the characterization of the proceeds ‘will depend on the ... premium 

for the final term of the policy.’ (Minnesota Mutual Life Insurance Co.[ v. Ensley (9th 

Cir. 1999) 174 F.3d 977], 983.)” (Burwell I, supra, 221 Cal.App.4th at p. 17, fn. 

omitted.) Specifically, proceeds are to be characterized as follows:
8.

“The proceeds are entirely community when the final premium is paid 

solely with community property. (Logan, supra, 191 Cal.App.3d at p. 321.) 

The proceeds are entirely separate property when (1) a separate estate has 

paid the final premium with separate funds; (2) the insured spouse was 

insurable at the end of the last term paid for by community funds; and 

(3) either (a) the insured spouse’s health was such that he or she could have 

purchased a comparable policy at a comparable price when the separate 

estate began paying the premiums, or (b) the policy did not contain a 

premium cap when the separate estate began paying the premiums. The 

proceeds are part community and part separate where (1) the separate estate 

has paid the final premium with funds that are part community and part 

separate; or (2) the insured spouse has become medically uninsurable 

before he or she began paying the premiums with separate property; or 

(3) the insured spouse could not have purchased a comparable policy at a 

comparable price when he or she began paying the premiums with separate 

property. [Citation.]” (Id. at p. 24, fn. omitted.)

We concluded that these principles could not be applied until a sufficient factual 

record was developed. (Burwell I, supra, 221 Cal.App.4th at p. 24.) We remanded for 

the trial court to make findings as to the source of funds used to pay for the final term of 

coverage, and issues of medical and/or lessened insurability. (Id. at pp. 24–25.)

In the unpublished portion of the opinion, we observed that the parties did not 

challenge on appeal the trial court’s finding that Gary violated the ATROs. Nor had the 

parties challenged the trial court’s ruling that the change of beneficiary from Becky to 

Cynthia is void. Accordingly, we held that “[t]hose rulings remain intact on remand.” 

(Burwell I, supra, F064265, slip op. at p. 26 [nonpub. portion].)

Remand Proceedings

First Stipulation

On March 4, 2015, the court filed an order pursuant to an agreement of the parties. 

Specifically, the parties entered a stipulation as to certain facts, with the intent that they 

be “conclusively” presumed true for all future trials or hearings. Among those facts is the 

following: “There are very few assets in Gary’s probate estate, and there are clearly 

insufficient assets to pay Becky’s $1.8 [m]illion [j]udgment.”
9.

Second Stipulation

In July 2016, the parties entered into a second stipulation. Among the stipulated 

facts were the following:

“2. The One Million Dollar Policy was a term life insurance policy, 

the monthly premium on which was $186.62. The last $186.62 premium 

paid on the One Million Dollar Policy prior to Gary’s death was paid by 

electronic transfer on April 7, 2010, from a United Security Bank checking 

account held in the joint names of Cynthia and Gary (herein ‘Cynthia’s and 

Gary’s Joint Account’).

“3. On March 16, 2010, Cynthia’s and Gary’s Joint Account was 

overdrawn. There were no funds in the account. Two deposits were made 

into Cynthia’s [a]nd Gary’s Joint Account between March 16, 2010 (the 

date the account was overdrawn), and April 7, 2010 (the date the last 

$186.62 premium payment was made from the account on the One Million 

Dollar Policy prior to Gary’s death). The two deposits were (i) a $2,300 

telephone transfer credit on March 17, 2010, and (ii) a $3,000 check 

deposited on March 24, 2010.”

Hearings

The court heard “opening statements” from counsel on July 14, 2016.1 Across 

several hearings, the court received testimony.2 The parties also provided multiple briefs 

1 The parties interpreted Burwell I as holding that each new premium payment 

creates a new insurance policy. However, in Burwell I, we expressly held that “each 

premium payment does not create a new contract.” (Burwell I, supra, 221 Cal.App.4th at 

p. 19, italics added.)

Instead, each new premium payment gives rise to “a new enforceable contractual 

right and thus a distinct property interest.” (Burwell I, supra, 221 Cal.App.4th at p. 19.) 

It is important to remember that the property to be classified is not “the policy” as a 

unitary asset, but rather “[t]he chose in action represented by the policy ....” (New York 

Life Ins. Co. v. Bank of Italy (1923) 60 Cal.App. 602, 606, italics added.) The premise 

that property interests inhere at the level of contractual rights rather than a contract as a 

whole, is not of our making. (See, e.g., Civ. Code, §§ 14, subd. (b)(3), 953; see also In re 

Marriage of Brown (1976) 15 Cal.3d 838, 845.)

2 Some testimony concerned the issues of lessened insurability and comparable 

policy pricing. (See Burwell I, supra, 221 Cal.App.4th at pp. 20–23.) The court 

ultimately found that Gary was insurable when he began paying premiums and could 

have purchased a comparable policy at a comparable price when he began paying the 
10.

to the trial court on various issues related to the disposition of the proceeds, including 

briefing after the presentation of evidence.

Testimony of Cynthia

Cynthia testified that she and Gary were married from November 2006 until he 

died on April 17, 2010. In 2010, both she and Gary worked for BCI. Cynthia would 

“take the calls” for BCI, and Gary would manage the operation and work in the field.

Cynthia testified that the purpose of her joint bank account with Gary was to pay 

“household bills” and “living expenses.” Gary and Cynthia had been paying the premium 

on the insurance policy via automatic debit out of the joint account since September 

2009, give or take a couple months. Accordingly, the $168.62 premium payment on 

April 7, 2010, was made by automatic debit out of the joint account. Cynthia understood 

that she was the beneficiary on the policy at that time.

Cynthia and Gary’s joint account was overdrawn in early 2010. From that time 

until Gary’s death, there were only two deposits into the joint account, both coming from 

BCI.3 As a result, the funds used to make the final premium in April 2010 were 

necessarily funds that ultimately came from BCI. Cynthia identified a $3,000 deposit 

into the joint account on March 24 as a “draw[]” that Gary took from BCI. Cynthia also 

identified a $2,300 transfer credit on March 17 as having come from BCI.4

Counsel also read portions of Cynthia’s deposition testimony into the record. 

Among the matters read into the record was Cynthia’s testimony that she did not 

remember working outside the home after 2006. Cynthia also testified in deposition that 

premiums with separate property. Neither party challenges those findings, so we do not 

recount the testimony/evidence relating thereto.

3 Similarly, in deposition testimony admitted at trial, Cynthia testified that from 

January 1 until the date of his death, the only source of money Gary had was BCI or 

Burwell Properties.

4 Contextually, it is clear that both March dates described herein were in 2010.
11.

the only source of money for Gary from January 1st to the date of his death was from 

either BCI or Burwell Properties.

Testimony of Adam Harston

Adam Harston testified as an expert on behalf of Becky. Harston testified that he 

was retained to determine the source and character of the funds used to pay the final 

premium payment on the life insurance policy. Harston reviewed several documents 

including the parties’ factual stipulations, a judgment signed by Judge Somers, the 

insurance policy, premium notices, BCI’s corporate tax returns from 2007 through 2010, 

Gary’s personal tax returns from 2007 through 2010, an income tax refund check, and 

statements for three bank accounts: BCI’s account at Westamerica Bank (Westamerica); 

BCI’s account at United Security; and Gary and Cynthia’s account at United Security.

Harston testified that premium payments on the life insurance policy became 

delinquent after August 2009.

In August or October 2009, BCI’s Westamerica account was closed and its funds 

transferred to BCI’s account at United Security. Gary also closed a personal account he 

had at Westamerica and opened an account at United Security with Cynthia in November 

2009. It was from Gary and Cynthia’s account at United Security (“Gary and Cynthia’s 

account”) that the final premium payment was made.

In Harston’s opinion, the funds drawn from Gary and Cynthia’s account to pay the 

final premium were community property of Gary and Becky’s community. Harston 

explained his reasoning as follows. Harston initially testified that he assumed the 2007 

income tax refund to BCI was community property because it came to BCI prior to the 

2008 judgment awarding BCI to Gary. Harston later testified that though the tax refund 

pertained to tax year 2007, the refund check itself was not received until November 2008, 

which is after Judge Somers awarded BCI to Gary as his separate property. On redirect 

examination, Harston testified that Judge Somers’s 2008 judgment reserved the issue of 

whether BCI’s income prior to 2008 was community or separate property. In 2010, 
12.

Judge Somers ruled that the money earned by BCI prior to 2008 was community property 

of Gary and Becky.

The tax refund was deposited into BCI’s account at Westamerica. The balance on 

that account never fell below $1,800 before the account was closed, and its funds 

transferred to United Security. Hartson assumed that any “separate property expenses” of 

Gary’s would have come from Gary’s “separate property funds, not from the community 

funds of Gary and Becky that were left.” Harston assumed that, in order to avoid 

violating his fiduciary duties to Cynthia, Gary paid the insurance premiums with 

“community property money of him and Becky.”

A transfer of $17,000 from BCI’s Westamerica account to BCI’s United Security 

Bank account occurred in November 2009. In Harston’s opinion, $1,800 of that sum was 

community property of Gary and Becky, and the remainder of the $17,000 was Gary’s 

separate property. Harston arrived at the $1,800 figure because it was the lowest balance 

the Westamerica account reached from the time the tax refund was deposited until the 

account was closed.

Shortly before the last premium payment was made, Cynthia and Gary’s personal 

account was overdrawn. A transfer into the personal account from BCI’s United Security 

account rectified the overdrawn status. In Harston’s opinion, some of the funds used for 

that transfer were the community property of Becky and Gary.

Harston considered whether any funds deposited into Gary and Cynthia’s account 

could have come from community property funds of Gary and Cynthia. Harston 

concluded that “no wages or anything” were recorded on BCI’s or Gary’s 2010 income 

tax return that would indicate he had received any community income that could be 

deposited into the account.

September 7, 2017, Minute Order

In a minute order dated September 7, 2017, Commissioner Cynthia Loo entered 

her ruling. The ruling observed that Probate Code section 5305 establishes a presumption 
13.

that the funds in the joint account were Gary and Cynthia’s community property. The 

court concluded that Becky failed to carry her burden of rebutting this presumption. As a 

result, the final premium payment for the insurance policy was paid with community 

property.

The court found that Gary remained insurable at all relevant times and could have 

purchased a comparable policy at a comparable price when he began paying premiums.

The court further observed that Burwell I left intact the trial court’s prior ruling 

that Gary’s change of beneficiary from Becky to Cynthia was void. As a result, the court 

concluded that the present situation was similar to one where a spouse names a 

nonspouse as the beneficiary of a policy paid for with community funds. On that basis, 

the court granted 50 percent of the proceeds to Becky and 50 percent of the proceeds to 

Cynthia.

The body of the order concludes with a directive that “Petitioner shall prepare an 

order for signature by the Court.” Above Commissioner Loo’s signature appears the text, 

“IT IS SO ORDERED.”

Cynthia appealed this order via a notice of appeal filed November 3, 2017.

November 27, 2018, Order

On November 27, 2018, a Findings and Order After Hearing signed by Judge 

Susan Gill was filed. This order largely tracked the findings and orders from 

Commissioner Loo’s September 7, 2017 order with two notable exceptions. First, the 

November 27, 2018, order contains no directive about preparation of a future order. 

Second, the November 27, 2018, has an additional substantive sentence that reads: 

“Section 910(a) of the California Family Code is inapplicable, and Gary’s and Cynthia’s 

community property interest in the One Million Dollars is not liable for satisfying any 

portion of Gary’s $1.8 million dollar judgment in favor of Becky.”

Becky appealed this order via cross-appeal filed January 10, 2019.
14.

DISCUSSION

I. Cynthia’s Motion to Dismiss is Denied

Cynthia moved to dismiss Becky’s cross-appeal as untimely. We deferred ruling 

on the motion pending a decision on the merits.

In her motion, Cynthia argues the September 7, 2017, order was “the appealable 

order in this case,” not the November 27, 2018, order. If Cynthia is correct, Becky’s time 

to cross-appeal from the September 7, 2017, order, would have only been extended “until 

20 days after the superior court clerk serve[d] notification of the first appeal.” (Cal Rules 

of Court, rule 8.108(g)(1).) Under that timeframe, Becky’s cross-appeal filed on January 

10, 2019, would be untimely.

In response, Becky argues the September 7, 2017, order was not appealable at all. 

Thus, Becky contends that she properly cross-appealed from the November 2018 order. 

If Becky is correct, then her January 2019 cross-appeal from an order entered November 

2018 would be timely.

Consequently, it is clear that the resolution of Cynthia’s motion to dismiss hinges 

on which of the orders were appealable.

Cynthia emphasizes the fact that the November 2018 order is largely a restatement 

of the findings and orders contained in the September 2017 order. And, indeed, it is true 

that “[o]nce a final, appealable order or judgment has been entered, the time to appeal 

begins to run. The Rules of Court do not provide, once a judgment or appealable order 

has been entered, that the time to appeal can be restarted or extended by the filing of a 

subsequent judgment or appealable order making the same decision.” (Laraway v. 

Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.)

However, while orders made after final judgments are generally appealable (Code 

Civ. Proc., § 904.1, subd. (a)(2)), “[s]ome postjudgment orders are not appealable 

because, ‘... [they] are more accurately understood as being preliminary to a later 

judgment ....’ ” (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.) For present 
15.

purposes, the most important example of this is when a minute order directs preparation 

of a further order or judgment. Such a minute order is “merely a preliminary order 

authorizing a subsequent judgment and [is] not appealable. [Citations.]” (Brown v. 

Municipal Court (1978) 86 Cal.App.3d 357, 360, fn. 1; see also Grattan v. Silbaugh 

(1953) 121 Cal.App.2d 684; 9 Witkin (2020) Cal. Proc. 5th Appeal, § 613.) “ ‘No appeal 

lies from a minute order, ... the clear intent of which is that the court has merely 

authorized the issuance of another written order or judgment.’ [Citations.]” (Fox v. Fox 

(1954) 127 Cal.App.2d 253, 254–255.)

Here, the September 2017 minute order clearly directed petitioner to prepare a 

further written order for signature by the court. Under the authorities cited above, this 

anticipation of a further order renders the September 2017 minute order unappealable.5 

Therefore, the appealable order in this case was the November 2018 order. Becky timely 

cross-appealed from that order. For these reasons, we deny Cynthia’s motion to dismiss 

Becky’s cross-appeal.

II. Cynthia May not Challenge the Trial Court’s Order Declaring the Change of 

Beneficiary Void Pursuant to the ATROs

As noted above and in Burwell I, Judge Susan Gill issued an order dated 

November 9, 2011, declaring that the ATROs continued to apply to the term life 

insurance policy when the purported beneficiary change from Becky to Cynthia was 

made. As a result, the order held that the “change of beneficiary from [Becky] to Cynthia 

Burwell is void.” The same order proceeded to declare that the term life insurance policy 

was a community asset of the parties (i.e., Becky and Gary).

5 While this conclusion warrants denial of Cynthia’s motion to dismiss Becky’s 

cross-appeal, it does not require dismissal of Cynthia’s appeal from the September 2017 

order. “[O]n a purported appeal from a nonappealable order, the appellate court has 

discretion to treat the appeal as a petition for an extraordinary writ within the appellate 

court’s original jurisdiction. [Citation.]” (In re Marriage of Ellis, supra, 101 

Cal.App.4th at p. 404.)
16.

Cynthia appealed from this order and challenged its characterization of the life 

insurance policy proceeds. (Burwell I, supra, 221 Cal.App.4th at p. 11.) However, 

Cynthia’s opening brief in Burwell I, did not “challenge the trial court’s finding that Gary 

violated the ATROs, nor its ruling that the change of beneficiary from Becky to Cynthia 

is void.” As a result, we held that because they were not challenged on appeal, those 

particular rulings “remain intact on remand.” We explained the trial court would have to 

determine any practical effect of those rulings after it characterized the policy proceeds 

on remand.

Cynthia now attempts to challenge the conclusions that the ATROs were still in 

effect when Gary purported to change the beneficiary on the insurance policy and that, as 

a result, the beneficiary change is void.6 These challenges are not cognizable.

“As a general rule, all questions presented by the record must be raised upon the 

first appeal from an adverse ruling, ...” (Allen v. California Mut. Building & Loan Ass’n 

(1943) 22 Cal.2d 474, 485, italics added.) Thus, when the factual predicates for an 

appellate contention are present when the first appeal is taken and yet appellant fails to 

raise the contention, it cannot then be asserted in a subsequent appeal. (People v. Senior 

(1995) 33 Cal.App.4th 531, 538.) In such circumstances, the appellant does not get 

“ ‘ “two bites at the appellate apple” ’ [citation], ...” (Ibid.) Put differently, the doctrine 

of forfeiture “precludes successive appeals based on issues ripe for consideration in the 

prior appeal and not brought in that proceeding. [Citations.]” (People v. Jordan (2018) 

21 Cal.App.5th 1136, 1143.) 

6 Cynthia also challenges the September 2017 minute order as internally 

inconsistent. However, we review the ruling, not the reasoning. For the reasons 

explained herein, the ruling that Becky and Cynthia are each entitled to half the proceeds 

was correct. Therefore, we need not determine whether all of the trial court’s own 

reasoning was correct or internally consistent.
17.

These principles preclude Cynthia’s present attack on the trial court’s conclusions 

regarding the applicability of the ATROs and their effect of invalidating the beneficiary 

change. She contends that the validity of the court’s November 9, 2011, order depends 

on whether the policy was an asset of Gary and Becky’s community, and we “now know” 

it was not.7 Even if the applicability of the ATRO did depend on the characterization of 

the policy, Cynthia was free to challenge the order on that basis in the prior appeal. 

Specifically, she was free to argue that because the policy was separate property (see 

Logan, supra, 191 Cal.App.3d at p. 326), the ATROs did not apply.8 She failed to do so 

and cannot do so now.

7 However, the ATROs are not limited to community property. (See Fam. Code,

§ 2040, subd. (a)(2)(A), (a)(3).) The statutory ATROs generally restrain “both parties 

from transferring ... or in any way disposing of, any property, real or personal, whether 

community, quasi-community, or separate ....” (Fam. Code, § 2040, subd. (a)(2)(A), 

italics added.) The statutory ATROs also specifically restrain “both parties from ... 

canceling, transferring, disposing of, or changing the beneficiaries of insurance ... 

including life ... held for the benefit of the parties and their child or children....” (Fam. 

Code, § 2040, subd. (a)(3).)

There is a split of authority as to whether term life insurance policies have any 

value while the insured is alive. (Compare In re Marriage of Lorenz (1983) 146 

Cal.App.3d 464, 468, with In re Marriage of Gonzalez, supra, 168 Cal.App.3d at 

pp. 1024–1025.) Those that conclude a term life insurance policy has no value until the 

death of the insured might believe the ATROs are overly broad to the extent they prohibit

changing the beneficiary designations on such policies. However, if Gary believed the 

reach of the ATROs extended too broadly in his situation, he could have applied for a 

modification of the ATRO to permit his change of beneficiary to Cynthia. (Fam. Code,

§ 235.) He did not do so, and we cannot ignore the failure to abide by a restraining order.

8 Cynthia argues the “finding Gary violated the ATROs and the beneficiary 

change was impermissible” was reversed by Burwell I. Not so. We quite clearly noted in 

Burwell I that the parties had not “challenge[d] the trial court’s finding that Gary violated 

the ATROs, nor its ruling that the change of beneficiary from Becky to Cynthia is void” 

and that, as a result, “[t]hose rulings remain intact on remand.” (Burwell I, supra, 

F064265, slip op. at p. 26 [nonpub. portion].)
18.

III. The Court had Jurisdiction to Determine Title to the Proceeds

Cynthia argues the trial court has no jurisdiction to determine who is entitled to the 

insurance proceeds because they were not an asset of the marital community at issue.

9

 

We conclude the court had jurisdiction.

It is true that a family court presiding over a marital dissolution action does not 

generally have jurisdiction to dispose of separate property. The family court may 

characterize assets, confirm separate property and, if permitted by statute, order 

reimbursement from the separate estate to the community estate. (In re Marriage of 

Braud (1996) 45 Cal.App.4th 797, 810.) Generally, that is the full extent of a family 

court’s jurisdiction over separate property in a marriage dissolution action. (Ibid.) 

However, superior courts have general jurisdiction to determine title to property. Thus, if 

the parties to a dissolution action make the determination of title to property an issue in 

the proceedings, the superior court has jurisdiction to determine that question as “fully as 

if the title were put in issue in a direct action brought for that purpose.” (Porter v. 

Superior Court (1977) 73 Cal.App.3d 793, 804–805 & fn. 4.) 

Here, the parties have made the core issue of this case to be the determination of 

title to the insurance proceeds. They “presented such property as an important issue and 

invited the trial court to make disposition thereof.” (Spahn v. Spahn (1945) 70 

Cal.App.2d 791, 796.) As a result, the trial court was fully empowered to resolve all 

applicable legal or equitable claims to determine title.10 (Cf. Porter v. Superior Court, 

9 Cynthia relies on an appellate opinion that was subsequently ordered 

depublished.

10 Cynthia observes that Becky’s motion seeking the insurance proceeds was 

brought under Family Code section 2556, which concerns division of an undivided 

community asset. Cynthia then poses a rhetorical question in her brief: How can an 

undivided asset motion divide an asset which is not community property? 

As noted above, we have concluded the court had jurisdiction to determine who 

was entitled to the proceeds even though they are not an asset of Gary and Becky’s 

community estate. To the extent Cynthia is arguing that a motion under Family Code 
19.

supra, 73 Cal.App.3d at pp. 804–805; see also Spahn v. Spahn, supra, 70 Cal.App.2d at 

pp. 795–797.)

IV. Becky’s Evidentiary Challenge to the Trial Court’s Finding Regarding the 

Final Premium Payment Fails

Becky contends there is “no evidence” to support the trial court’s finding that the 

final premium payment on the policy was paid with community funds of Gary and 

Cynthia. Becky does acknowledge that the payment was made from an account in Gary 

and Cynthia’s names. She further acknowledges that fact creates a presumption the funds 

used were their community property. (See Prob. Code, § 5305, subd. (a).)

However, she argues that she successfully rebutted the presumption arising from 

Probate Code section 5305 subdivision (a) by proving, through expert testimony, that the 

funds could be traced to separate property. (See Prob. Code, § 5305, subd. (b).) It is 

important to observe that this is a different contention than asserting there is no evidence 

to support the trial court’s finding. In actuality, Becky is asserting that the trial court 

should have made the favorable inferences supported by her evidence (e.g., expert 

testimony regarding tracing) over the unfavorable inferences raised by Cynthia’s 

evidence (e.g., the stipulated fact that premium was paid from joint account).11 This 

contention does not satisfy the requirements of a substantial evidence challenge. That is, 

even if we accepted that Becky successfully presented evidence raising an inference that 

the premium payment was made with separate property, we would reject her challenge. 

Because the court’s conclusion is supported by its own substantial evidence, it is 

immaterial that some testimony supports a conclusion contrary to that reached by the trier 

section 2556 was the wrong procedural vehicle by which to seek characterization or 

disposition of the insurance proceeds, we find no prejudice. Cynthia was on notice of the 

nature of Becky’s claim and engaged her on the merits.

11 Indeed, Becky later concedes that the stipulation the funds came from a joint 

account “presumptively met [Cynthia’s] initial burden” of proof.
20.

of fact. (In re Estate of Durham (1951) 108 Cal.App.2d 148, 150–151; Martinez v. 

Hudson (1936) 14 Cal.App.2d 42, 43–44.)12

V. Gary’s Testamentary Disposition of the Policy Proceeds is Effective as to his 

Community Share, but Invalid as to Cynthia’s Community Share

The trial court’s ruling stated: “This Court is treating the situation akin to where a 

spouse chooses to name a beneficiary other than his/her spouse as the beneficiary, and 

uses community funds to do so.” This was the correct approach, for the reasons 

explained below.

A. Law

“[W]here premiums on the life insurance policy of the husband are paid out of 

community funds, the proceeds become community assets.”13 (Beemer v. Roher (1934) 

137 Cal.App. 293, 297.) Because it is a community asset, “[a] husband ... has a right to 

give away his one-half of the community property [citation] ....” (Mazman v. Brown 

(1936) 12 Cal.App.2d 272, 274.) And he may do so through a “gift to take effect upon 

his death as by way of an insurance policy.” (Ibid.) Often, this is accomplished by 

designating a beneficiary to the life insurance policy. In this circumstance, the 

designation of a beneficiary “is testamentary in character.” (Tyre v. Aetna Life Ins. Co. 

(1960) 54 Cal.2d 399, 404.)

Specifically, “ ‘the designation of a beneficiary in a policy of life insurance 

initiates in favor of the beneficiary an inchoate gift of the proceeds of the policy, which, 

if not revoked, by the insured prior to his death, vests in the beneficiary at the time of his 

12 Becky argues in her reply brief that because she “traced” the funds to a separate 

property source, it “once again” became Cynthia’s burden to prove the funds used to 

make the final premium payment were community funds of Cynthia and Gary. But that 

assumes the trial court was required to credit Becky’s expert tracing evidence, which is 

incorrect. 

13 We retain the gendered language of older cases when it aligns with the facts of 

the present case. Of course, the same principles apply if a wife owns a policy, and the 

husband is the beneficiary.
21.

death; ...’ ” (Mazman v. Brown, supra, 12 Cal.App.2d at p. 274; see also New York Life 

Ins. Co. v. Bank of Italy, supra, 60 Cal.App. at p. 606.) Thus, the “gift” is made when the 

beneficiary is designated. However, the gift is usually revocable and therefore does not 

“vest” in the beneficiary until the time of death.

For these reasons, it is clear that a spouse can exert some testamentary control 

over life insurance proceeds. However, “[l]ife insurance proceeds are subject to the 

general rule that a spouse cannot dispose of community personal property without either 

the other spouse’s written consent or consideration. [Citation.]” (In re Marriage of 

O’Connell (1992) 8 Cal.App.4th 565, 578; see also Martinez v. Hudson, supra, 14 

Cal.App.2d at p. 44.) Consequently, when the proceeds are community property, “the 

husband has the power to give his half of the community property to the named 

beneficiary, but not the wife’s half. [Citation.]” (Patillo v. Norris (1976) 65 Cal.App.3d 

209, 217, italics added.)

As a result, when a beneficiary designation would otherwise vest all of the 

proceeds in a third party, a surviving spouse that did not consent to the designation “may 

recover his or her community share in the proceeds. [Citations.]” (Life Insurance Co. of 

North America v. Cassidy (1984) 35 Cal.3d 599, 605–606; see also Minnesota Mutual

Life Insurance Co. v. Ensley, supra, 174 F.3d at p. 985; Tyre v. Aetna Life Ins. Co., supra, 

54 Cal.2d at p. 405; In re Marriage of O’Connell, supra, 8 Cal.App.4th at p. 578; 

McBride v. McBride (1936) 11 Cal.App.2d 521, 524.) Usually, this means the beneficiary 

is entitled to one-half of the proceeds “as a gift by the husband of his share of such 

community assets” and the surviving spouse is entitled to the other half. (Beemer v. 

Roher, supra, 137 Cal.App. at p. 297.) In other words, a “gift by the husband of 

community property in excess of 50 per cent does not invalidate the entire disposition, 

but is invalid ... as to the excess ....” (Mazman v. Brown, supra, 12 Cal.App.2d at 

p. 276; see also McBride v. McBride, at pp. 523–524)
22.

B. Analysis

The aforementioned principles dictate the result here. When Gary designated 

Becky as the beneficiary of the policy in 1996, he initiated an “inchoate gift of the 

proceeds of the policy.” (Mazman v. Brown, supra, 12 Cal.App.2d at p. 274.) Unless the 

designation was revoked, Becky’s right to the proceeds would “vest” at the time of 

Gary’s death. (Ibid.) Though Gary attempted to revoke the gift by changing the 

beneficiary to Cynthia, that purported revocation was ruled invalid and said ruling cannot 

now be challenged. As a result, the gift vested in Becky at the time of Gary’s death. 

However, as noted above, the insurance proceeds were the community property of 

Gary and Cynthia. Consequently, while Gary’s testamentary disposition of the proceeds 

would otherwise have vested 100 percent of the proceeds in Becky, that disposition is 

“invalid ... as to the excess” (Mazman v. Brown, supra, 12 Cal.App.2d at p. 276) of 

Gary’s 50 percent community share. As a result, Cynthia “is entitled to set aside the gift 

made to the named beneficiary without consideration and without her consent, to the 

extent of one-half of the community property interest. [Citations.]” (Patillo v. Norris, 

supra, 65 Cal.App.3d at p. 217.) That is, Becky is entitled to half the proceeds pursuant 

to the testamentary disposition of Gary’s community share, and Cynthia is entitled to the 

other half as her own community share. (See Beemer v. Roher, supra, 137 Cal.App. at 

p. 297.)

C. Fact that Gary Lacked “Donative Intent” by the Time of His Death is 

Irrelevant Here

Becky seeks to avoid this result by arguing there was no evidence Gary had a 

“donative intent.” Similarly, Cynthia asserts Gary “never made a gift” to Becky. Not so. 

Gary clearly did intend to gift the proceeds to Becky at one point: in 1996 when he 

initially designated her as beneficiary during their marriage. It was at that moment Gary 

intentionally “initiate[d] in favor of [Becky] an inchoate gift of the proceeds of the 

policy.” (Mazman v. Brown, supra, 12 Cal.App.2d at p. 274.) 
23.

It is true that this gift would not “vest” until Gary’s death, and was subject to 

revocation during Gary’s lifetime. And indeed, it is clear that Gary’s intent did 

subsequently change. But, importantly, his attempt to revoke the gift was invalidated 

pursuant to the ATROs. 

Thus, the proper conceptualization of the present situation is that Gary did make 

an inchoate gift to Becky and then tried to revoke the gift at a time when he was 

restrained from doing so. As a result, the gift vested in Becky upon his death in 

accordance with the intent he had when the inchoate gift was originally made, but in 

contravention of the intent he likely had at death.14 Gary was not forced to make an 

“involuntary gift,” he was prevented from revoking a voluntary gift. 

D. Sufficient Evidence Supported Implied Finding Cynthia did not Consent 

to Disposition of Proceeds to Becky

Becky next suggests that Cynthia failed to prove she did not consent to the 

testamentary disposition of the proceeds entirely to her (Becky). However, the change of 

beneficiary form designating Cynthia as beneficiary contained a paragraph beginning 

with the sentence: “I (we) as the policyowner(s) hereby consent to the above 

designations and revoke all previous beneficiary designations....” (Italics added.) Below 

this paragraph appears Cynthia’s signature (as well as Gary’s). The “previous 

beneficiary designation[]” being revoked was the one in favor of Becky. Cynthia’s 

signature below the above-quoted statement clearly supports an inference she did not 

consent to Becky receiving the proceeds. Because that inference supports the trial court’s 

order, we accept it.15

14 It is important to remember the trial court invalidated Gary’s attempted 

revocation of the gift not because it did not reflect his intent at the time, but because it 

was purportedly made in violation of the ATROs.

15 As a result of our conclusions in this case, we do not address the parties’ 

untimely contentions concerning Probate Code section 5021.
24.

VI. Fact that Gary Died Intestate Does Not Entitle Cynthia to 100 Percent of the 

Proceeds

Cynthia claims she is nonetheless entitled to 100 percent of the proceeds. 

Specifically, that she is entitled to her half of the community proceeds (Prob. Code, 

§ 100, subd. (a)) and Gary’s half of the community proceeds because he died intestate 

(Prob. Code, §§ 6401, subd. (a), 13500.) But this argument ignores the fact that Gary’s 

designation of Becky as the beneficiary of the policy remains in effect under the trial 

court’s November 9, 2011, order. Gary’s interest in the proceeds goes to Becky by 

operation of the original beneficiary designation, not to Cynthia as successor.16 (See In 

re Welfer (1952) 110 Cal.App.2d 262, 265 [“a beneficiary under an insurance policy 

takes by virtue of the contract of insurance ... the proceeds do not become a part of the 

estate of the insured ...”]; see also Prob. Code, § 5000.)

VII. Becky has not Sufficiently Developed her Claim of Error Regarding Family 

Code Section 910

Becky next contends the court erred in concluding Family Code section 910 does 

not apply here. That statute establishes the general rule that a community estate is liable 

16 Because the court properly awarded 50 percent of the proceeds to Becky 

pursuant to the beneficiary designation, we need not resolve whether that award is also 

supported by the court’s finding that Gary’s failed to disclose the policy (see Fam. Code, 

§ 1101.) We do note that if Gary had timely disclosed the policy, the parties could have 

included its disposition in the 2008 stipulated judgment dividing their marital assets. At 

that point, they presumably would have had several options, including assigning a value 

to the policy and awarding it to one party with an offset to the other party. Or, they might 

have agreed the policy had no value at that time. Alternatively, they might have even 

entered an agreement whereby Gary would be required to maintain the policy for Becky’s 

benefit. (See Burgart v. Burgart (1970) 5 Cal.App.3d 409.)

As noted in Burwell I, the court impliedly found previously that Gary had not 

acted with malice, oppression, fraud or malice so as to support a 100 percent award under 

Family Code section 1101, subdivision (h). (Burwell I, supra, F064265, slip op. at p. 30 

[nonpub. portion].)

Nor need we resolve whether Family Code section 1101 even applies to the 

proceeds at issue here.
25.

for debts incurred by either spouse before or during marriage. (Fam. Code, § 910, 

subd. (a).)

Becky’s opening brief offers little argument to support her claim. She quotes the 

statute and a case, while observing the trial court provided no reasoning for rejecting her 

claim. However, she does not sufficiently develop her claim, nor address the provision in 

the policy that states, “The policy proceeds will be exempt from the claims of creditors 

and from legal process to the extent the law permits.” (See Ins. Code, § 10171.) 

“We are not bound to develop appellants’ arguments for them. [Citation.]” (In re 

Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Therefore, we reject 

this claim of error because it is not “sufficiently developed.” (T.P. v. T.W. (2011) 191 

Cal.App.4th 1428, 1440, fn. 12.)

DISPOSITION

The court’s orders are affirmed. Each party shall bear their own costs on appeal.

POOCHIGIAN, Acting P.J.

WE CONCUR:

FRANSON, J.

PEÑA, J.